Physicians aborting a six- to eight-week-old embryo are not required to inform patients that they are “killing a human being”, says the Supreme Court of New Jersey. In a decision that is sure to create controversy regardless of which side of the abortion debate one stands on, New Jersey’s highest court ruled in Acuna v. Turkish, A-15-06 (N.J., Sept. 12, 2007) that physicians practicing in the Garden State are not required, under the law, to notify those seeking to abort an embryo that the procedure results in the killing of a human being. Unless the court grants a pending motion for a rehearing and revises its opinion, Acuna will remain binding precedent in New Jersey, because the United States Supreme Court recently declined to review the decision.

From a legal perspective, the Acuna case was more a decision on informed consent than a decision on the legalities of abortion. The case arose out of medical advice allegedly received by a patient from her physiciangynecologist after the patient sought treatment for abdominal pain and headaches. An ultrasound revealed the patient was six to eight weeks pregnant. According to the patient, the physician informed her that, as a result of renal glycosuria (a kidney disorder from which the patient suffered for over a decade), she would live only three months unless she had an abortion. The alleged advice was inconsistent with the patient’s own life experience, which included successfully giving birth, twice, within the preceding three years – notwithstanding her kidney disorder.

The patient further alleged that the physician failed to inform her that she was pregnant, and instead informed her that she was carrying “blood”. After consulting with her husband and after the passage of three days, the patient signed a consent to perform a “termination of pregnancy”. Within weeks of the procedure, the patient was admitted to a hospital for bleeding and diagnosed with an “incomplete abortion”. It was only upon speaking to a nurse, she alleged, that she “started to realize” that she was carrying “a baby and not just blood”. She conducted her own research and eventually concluded that the abortion killed “a human being”.

The patient sued for, among other things, lack of informed consent. She alleged that, had she known that a “human being” was killed, she would not have agreed to the procedure. Her claims of wrongful death and her survival claims were dismissed by the courts below, and not part of the Supreme Court’s consideration. The Court held that she failed to satisfy the criteria for an appeal as-of-right under Court Rule 2:2-1. In New Jersey, appeals to the Supreme Court are permitted only if the Court grants leave, i.e., certification, pursuant to Court Rule 2:12 or if one of the criteria set forth in Court Rule 2:2-1 is met (substantial question arising under the Constitution, a dissent in an Appellate Division decision, death penalty, or “such cases as are provided by law.”). From an appellate practitioner’s perspective, it is interesting that the abortion debate fell within the certification procedure of Rule 2:12, rather than implicating a substantial question under the Constitution pursuant to Rule 2:2- 1, and that the wrongful death and survival claims fell within neither rule. It is likely that simply classifying the appeal as one raising a substantial question under the Constitution would have generated controversy, including that abortion cases implicate constitutional rights – a position routinely argued on appeal.

On the merits, the Court began its analysis by noting that the informed consent doctrine requires one to demonstrate that a physician withheld “medical information” and that this “medical information” is the type that a reasonably prudent person (a pregnant woman in like circumstances) would consider material prior to consenting to the procedure.

In assessing whether there was a legal duty to notify a patient – a reasonably prudent pregnant woman – that an embryo is an existing human being and aborting the embryo was killing a human being, the Court held:

Clearly, there is no consensus in the medical community or society supporting plaintiff’s position that a six- to eight-week-old embryo is, as a matter of biological fact – as opposed to a moral, theological, or philosophical judgment – a complete, separate, unique and irreplaceable human being or that terminating an early pregnancy involves actually killing an existing human being.

Further, the patient failed to substantiate her claim that physicians must inform patients that killing an embryo is equivalent to killing a human being. Therefore, Acuna dictates that regardless of whether or not an embryo is a “person” under New Jersey law, physicians are not required to proffer advice beyond the material facts of the medical procedure, and knowledge that an embryo is or is not a “human being” is not “medical information” under the informed consent doctrine.